ESBD_408085_1744052751323_RFP 809-25-0004 Capitol Grounds & Museum Sealant Replacement - Attachment E - Sample Contract.pdf

DRAFT CONTRACT

This Agreement is entered into by and between the State Preservation Board ("SPB" or “Owner”), an agency of the State of Texas, located at 201 E. 14th St., Ste. 950, Austin, Texas 78701, and

________________________ (Contractor) located at _______________________for construction services required for ____________________________________________ (“the Project”).

ARTICLE 1

SCOPE OF PROJECT

Contractor shall provide to SPB all of the services ("Services") and deliverables described in and in the manner required by the Contract Documents listed( in Article 2, for the following areas:

Compensation is $___________________________ (Article 5) with the contract term of

ARTICLE 2

CONTRACT DOCUMENTS

2.1 The Contract Documents consist of:

A. This Contract, SPB Contract No. 2025-xx;

B. The SPB’s Request for Proposals (RFP) #809-25-____, including the Project Manual and

Drawings which are a part of the RFP, (Exhibit A);

C. Contractor’s Proposal, including Contractor’s HUB Subcontracting Plan (Exhibit B).

2.2 All of the above are attached to and incorporated as part of this Contract for all purposes. In the case of conflicts between this document and any of the above attachments, the following shall control in this order of priority:

A. This Contract, SPB Contract No. 2025-xx;

B. The SPB’s Request for Proposals (RFP) #809-25-xxxx, including the Project Manual and

Pictures/Drawings which are a part of the RFP, (Exhibit A);

C. Contractor’s Proposal, including Contractor’s HUB Subcontracting Plan (Exhibit B).

ARTICLE 3

CONTRACTOR'S RESPONSIBILITIES

SPB Contract No.2025-xx

3.1 The Contractor shall comply with all applicable federal, state and local laws, statutes, codes, ordinances, rules and regulations and the orders and decrees of any court or administrative bodies or tribunals in any matter affecting the performance of this Contract, including, if applicable, workers compensation laws, compensation statutes and regulations, and licensing laws and regulations. When required, the Contractor shall furnish the SPB with satisfactory proof of its compliance.

3.2 The Contractor shall perform its services consistent with the professional skill and care ordinarily provided by contractors practicing in the same or similar locality under the same or similar circumstances. The Contractor shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.

3.3 The Contractor shall coordinate its services with those services provided by the SPB and the SPB's consultants. The Contractor shall be entitled to rely on the accuracy and completeness of services and information furnished by the SPB and the SPB's consultants. The Contractor shall provide prompt written notice to the SPB if the Contractor becomes aware of any error, omission or inconsistency in such services or information.

3.4 The Contractor shall be responsible for damage to the SPB's equipment, and/or workplace and its contents, by its, or its contractor's services, negligence in work, personnel, and equipment.

3.5 The Contractor shall be responsible and liable for the safety, injury and health of its employees and contractors while they are performing services for the SPB under this Contract.

3.6 The Contractor shall provide all labor and equipment necessary to furnish the goods or perform the service.

3.7 All employees of the Contractor shall be a minimum of 17 years of age and experienced in the type of work to be performed. No visitors or relatives of the Contractor's employees will be allowed on the work site unless they are bona fide employees of the Contractor performing services under this

Contract.

3.8 Except with the SPB's knowledge and consent, the Contractor shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the

Contractor's professional judgment with respect to this Project.

3.9 Contractor agrees that all information related to the Project managed by the Agency and shall not be shared or released at any time except at the SPB’s direction and with the SPB’s prior approval.

3.10 The Capitol is a site with security considerations. Contractor shall be prepared to submit security clearance information for all employees working on site, and ensuring that security clearance requirements do not impact their ability to perform the Work defined in this Contract.

ARTICLE 4

SPB RESPONSIBILITIES

4.1 SPB shall provide information and decisions to Contractor in a timely manner and shall clearly convey the SPB’s expectations to Contractor.

4.2 The SPB’s representative shall be ____________.

4.3 SPB shall provide project milestones and access to Project.

4.4 SPB shall assist in coordination with facility occupants.

4.5 SPB reserves the right to change its designated representation and/or project manager for convenience by written notification from the Executive Director of the State Preservation Board.

4.6 The SPB reserves the right, at its sole discretion, to unilaterally amend this Contract throughout the term of the Contract to incorporate any modifications necessary for the SPB's or the Contractor's compliance with all applicable state and federal laws, regulations, requirements and guidelines.

ARTICLE 5

COMPENSATION

5.1. Compensation shall not exceed__________________________.

5.2 Payment must be made in accordance with the payment procedure in the SPB Project Manual. The

Payment Period shall be monthly.

5.3 SPB shall be relieved of any obligation to permit performance or to pay for services performed after any termination of this Agreement.

5.4 Payments to Contractor will be made within thirty (30) days from latter of services performed or receipt of a valid, uncontested invoice in accordance with the Texas Government Code, Chapter 2251, and Texas Prompt Payment Act. SPB shall timely notify Contractor within 14 days of receipt of an invoice if the SPB questions, disagrees with, or desires additional information regarding an invoice.

5.5 To receive payment, Contractor must submit an invoice to SPB. The invoice format must be acceptable to the SPB and must include the following:

1. Contractor’s name and mailing address;

2. Name and telephone number of a person designated by Contractor to answer questions regarding the invoice;

3. SPB Contract Number;

4. Valid Texas Identification number (TIN) issued by the Comptroller of Public Accounts;

5. Description of each item for the goods/services listed on the Contract in sufficient detail to identify the order that relates to the invoice; and

6. Shipment date of goods listed in the Contract or dates of services covered by the invoice.

Please send invoices to:

State Preservation Board

Attn: Accounting Dept.

P.O. Box 13286, Austin, TX 78711

TSPB.accounting@tspb.state.tx.us

AIA Form G702, Application and Certificate for Payment, while not specifically required, is a good model for the level of detail expected by the SPB.

5.6 Each invoice must include all required attachments identifying payments to Historically

Underutilized Businesses and to all Subcontractors. Failure to submit “HUB Subcontracting Plan

Progress Assessment Report” form with each invoice will cause rejection of the invoice by SPB and its return to Contractor. A copy of the required report is available at http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ and will be provided to

Contractor.

ARTICLE 6

PROJECT SCHEDULE AND TERM OF AGREEMENT

6.1 The Project consists of

_______________________________. economically, while meeting the Owner's milestones, if any.

(Milestones )

6.2 This Agreement shall be effective as of the date executed by the last party and shall terminate on

_____________________________________________, unless extended by the parties or terminated earlier as provided in the Contract.

http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ProgressAssessmentReportForm.xls http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ProgressAssessmentReportForm.xls http://www.window.state.tx.us/procurement/prog/hub/hub-forms/

ARTICLE 7

CLAIMS AND DISPUTES

7.1 The dispute resolution process provided for in Chapter 2260 as described in the Uniform General

Conditions shall be used by the parties to attempt to resolve all disputes arising under this Contract.

ARTICLE 8

TERMINATION AND SUSPENSION

8.1. The Suspension and Termination provisions of the Uniform General Conditions shall apply to this

Contract.

ARTICLE 9

MISCELLANEOUS PROVISIONS

9.1 The Agreement shall be governed by, construed, and interpreted in accordance with the laws of the

State of Texas, except its provisions regarding conflict of laws.

9.2 The venue for any suit brought for any breach of this Agreement is fixed in any court of competent jurisdiction of Travis County, Texas.

9.3 Terms in this Agreement shall have the same meaning as those in Uniform General Conditions of the

State of Texas.

9.4 The SPB and Contractor, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. The Contractor may not assign this Agreement, in whole or in part, and may not assign any right or duty required under it, without the prior written consent of the

SPB.

9.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the SPB or Contractor.

9.6 Unless otherwise required in this Agreement, the Contractor shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site.

9.7 The Contractor may include photographs of the Project among the Contractor's promotional and professional materials only with SPB written approval. Contractor shall make a formal request including any photos or graphics Contractor proposed to use. The Contractor shall consider all materials to be the SPB's confidential or proprietary information even if the SPB has not previously advised the Contractor that specific information is considered by the SPB to be confidential or proprietary.

9.8 When Contractor receives information, Contractor shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project, or (3) its consultants and contractors who need to know the content of such information in order to perform services or construction solely and exclusively for the Project and whose contracts include similar restrictions on the use of confidential information. Contractor shall contractually require its consultants, if any, be bound by this confidentiality requirement.

9.9 Independent Contractor: For the purposes of the Agreement, the Contractor shall be considered an independent professional and is not to be considered an employee of the State Preservation Board

(SPB) or the State of Texas. The Contractor may not enter into any agreement or make any representation on behalf of the SPB or the State of Texas.

9.10 Indemnification: The Contractor shall indemnify and hold harmless the SPB, the State of Texas, all of its officers, agents, and employees from and against all claims, actions, suits, demands, proceedings, costs, damages, and liabilities including without limitation the costs of defense including reasonable attorneys' fees and court costs, arising out of, connected with, or resulting from any acts or omissions of the Contractor or any agent, employee, subcontractor, or supplier of the Contractor in the execution or performance of the Agreement. The Contractor shall coordinate its defense with the Texas Attorney General as required by the SPB. This paragraph is not intended to and shall not be construed to require the Contractor to indemnify or hold harmless the State or the SPB for any claims or liabilities resulting from the negligent acts or omissions of the SPB or its employees.

9.11 Intellectual Property Indemnification: The Contractor shall indemnify and hold harmless the SPB, the State of Texas, all of its officers, agents, and employees from and against all actions and claims, including costs of defense, involving infringement of patents or copyrights or incorporated misappropriated trade secrets arising out of, connected with, or resulting from the Contractor's execution or performance of the Contract. The Contractor shall pay any damages attributable to such claim that are awarded against the State of Texas and/or the SPB in a judgment or settlement.

9.12 No Waiver of Sovereign Immunity: The SPB and the Contractor agree that no provision of this

Contract is in any way intended to constitute a waiver by the SPB or the State of Texas of any immunities from suit or from liability that the SPB or the State of Texas may have by operation of law.

9.13 Funding: This Contract is subject to cancellation, without penalty to the SPB, either in whole or in part, if funds are not appropriated by the Texas Legislature. The SPB is a state agency whose authority and appropriations are subject to actions of the Texas Legislature and whose availability of funds may be subject to governmental action. If the SPB becomes subject to a legislative change, revocation of statutory authority, lack of appropriate funds, or unavailability of funds which would render contractor's delivery or performance under this Contract impossible or unnecessary, this

Contract will be terminated, either in whole or in part. In the event of a termination under this section, the SPB will not be liable to the Contractor or any other person or entity for any payments, damages or any other amounts which were otherwise due, except for services rendered and unpaid at the time of termination, or which may be caused or associated with such termination and the SPB will not be required to give prior notice.

9.14 Amendment: The contracting parties, if agreed, may amend the Contract at any time during the

Contract's duration. To be valid and binding, such amendments must be in writing and executed by both the SPB and the Contractor. No agent, servant, or employee of the SPB has authority to modify the Contract except by written amendment signed by the Project Manager and the Executive

Director. Any other attempted changes, including oral modifications, written notices that have not been agreed to by both Parties, or other modifications of any type, shall be invalid.

9.15 Notice of Administrative Changes: The Contractor shall provide written notification of administrative changes, including changes to company name, address, telephone number, and billing instructions, to the SPB as soon as possible, but not later than ten (10) days from the date of the change.

9.16 Confidentiality and Public Information: Notwithstanding any provisions of this Contract to the contrary, Contractor understands that the SPB will comply with the Texas Public Information Act, Texas Government Code, Chapter 552 as interpreted by judicial opinions and opinions of the

Attorney General of the State of Texas. The SPB agrees to notify Contractor in writing within a reasonable time from receipt of a request for information related to Contractor’s work under this contract, if such information is held by Contractor, or if the request pertains to information

Contractor has labeled as proprietary or confidential as described in section 9.17, below. Contractor will cooperate with the SPB in the production of documents responsive to the request. The SPB will make a determination whether to submit a Public Information Act request to the Attorney General.

Contractor will notify the SPB within twenty-four (24) hours of receipt of any third party requests for information that was provided by the State of Texas for use in performing the Contract. This

Contract and all data and other information generated or otherwise obtained in its performance may be subject to the Texas Public Information Act. Contractor agrees to maintain the confidentiality of information received from the State of Texas during the performance of this

Contract, including information which discloses confidential personal information particularly, but not limited to, social security numbers.

Contractor is required to make any information created or exchanged with the state pursuant to this contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the state.

9.17Proprietary Information: The SPB is a government agency subject to the Texas Public Information

Act. Information submitted to the SPB by Contractor shall be presumed to be subject to disclosure unless a specific exception to disclosure under the PIA applies. If it is necessary for Contractor to include proprietary or otherwise confidential information in its Proposal or other submitted information, Contractor must clearly label that proprietary or confidential information and identify the specific exception to disclosure in the PIA. Merely making a blanket claim that the entire proposal is excepted from disclosure because it contains some proprietary information is not acceptable, and shall make the entire Proposal subject to release under the PIA. In order to trigger the process of seeking an Attorney General opinion on the release of proprietary of confidential information, the specific provisions of the Proposal that are considered by the Contractor to be proprietary or confidential must be clearly labeled as described above. Any information which is not clearly identified as proprietary or confidential shall be deemed to be subject to disclosure pursuant to the PIA.

9.18 Antitrust and Assignment of Claims: Pursuant to 15 U.S.C. §1, et seq., and Texas Business &

Commerce Code §15.01, et seq., the Contractor affirms that to the best of its information, knowledge and belief it has not violated the Texas antitrust laws or federal antitrust laws and has not communicated its Proposal for the Contract directly or indirectly to any competitor or any other person engaged in such line of business. The Contractor hereby assigns to the SPB any claims for overcharges associated with the Contract under 15 U.S.C. §1, et seq., and Texas Business &

Commerce Code §15.01, et seq.

9.19 Affirmation Clauses:

A. The Contractor affirms that it has not given, offered to give, or intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the

Contract. Any instances of unethical conduct, undisclosed conflicts of interest and/or potential conflicts of interest, and other improprieties by the Contractor are grounds for termination of the Contract.

B. Contractor certifies that the individual or business entity named in the Contract is in compliance with Texas Government Code, Section 669.003, relating to contracting with executive head of a State agency.

C. Pursuant to Texas Government Code, Section 2155.004, Contractor certifies that the individual or business entity named in the Contract is not ineligible to receive the specified Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate.

D. Pursuant to Texas Family Code, Section 231.006 (relating to child support), Contractor certifies that the individual or business entity named in the Contract is not ineligible to receive the specified payment and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate.

E. Contractor represents and warrants that Contractor has no actual or potential conflicts of interest in providing services to the State of Texas under this Contract and that

Contractor‘s provision of services under this Contract would not reasonably create an appearance of impropriety.

F. Contractor certifies that the individual or business entity named in the Contract is eligible to participate in this transaction and that it has not been subjected to suspension, debarment, or similar ineligibility determined by any federal, state or local governmental entity and that the Contractor is in compliance with the State of Texas statutes and rules relating to procurement and that the Contractor is not listed on the federal government's terrorism watch list as described in Executive Order 13224.

Entities ineligible for federal procurement are listed at http://www.epls.gov.

G. Contractor represents and warrants that neither Contractor nor any person or entity that will participate financially in this Contract has received compensation from the SPB or any agency of the State of Texas for participation in preparation of specifications for this Contract. Contractor represents and warrants that it has not given, offered to give, and does not intend to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor or service to any public servant or employee in connection with this Contract.

H. A/E affirms by signature to this document that it (i) does not boycott Israel and (ii) will not boycott Israel during the term of the contract.

I. A/E affirms by signature to this document that it is not engaged in active business operations with Sudan, Iran, or any foreign terrorist organization and/or organizations with policies that are anathema to the policy interest of the United States or the State of

Texas.

9.20 Buy Texas: Contractor represents and warrants that it will buy Texas products and materials for use in providing the services authorized herein when such products and materials are available at a price and time comparable to products and materials produced outside the state.

9.21 Taxes: Purchases made for state uses are exempt from Texas State Sales Tax and Federal Excise

Tax. An Excise Tax Exemption Certificate will be furnished upon written request to the SPB.

9.22 Supporting Documents, Retention; Right to Audit; Independent Audits: Contractor shall maintain and retain supporting fiscal and any other documents relevant to showing that any payments under this Contract funds were expended in accordance with the laws and regulations of the State of

Texas, including but not limited to, requirements of the Comptroller of the State of Texas and the

State Auditor. Contractor shall maintain all such documents and other records relating to this

Contract and the State’s property for a period of four (4) years after the date of submission of the http://www.epls.gov/ final invoices or until a resolution of all billing questions, whichever is later. Contractor shall make available at reasonable times and upon reasonable notice, and for reasonable periods, all documents and other information related to the “Work” as defined in this Contract. Contractor and the subcontractors shall provide the State Auditor with any information that the State Auditor deems relevant to any investigation or audit. Contractor must retain all work and other supporting documents pertaining to this Contract, for purposes of inspecting, monitoring, auditing, or evaluating by the SPB and any authorized agency of the State of Texas, including an investigation or audit by the State Auditor.

Contractor shall cooperate with any authorized agents of the State of Texas and shall provide them with prompt access to all of such State’s work as requested. Contractor’s failure to comply with this

Section shall constitute a material breach of this Contract and shall authorize the SPB and the State of Texas to immediately assess appropriate damages for such failure. Pursuant to Texas Government

Code, Section 2262.003 the acceptance of funds by Contractor or any other entity or person directly under this Contract, or indirectly through a subcontract under this Contract, shall constitute acceptance of the authority of the State Auditor to conduct an audit or investigation in connection with those funds. Contractor acknowledges and understands that the acceptance of funds under this Contract shall constitute consent to an audit by the State Auditor, Comptroller or other agency of the State of Texas. Contractor shall ensure that this paragraph concerning the State’s authority to audit funds received indirectly by subcontractors through Contractor and the requirement to cooperate is included in any subcontract it awards. Furthermore, under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the State

Auditor must provide the State Auditor with access to any information the State Auditor considers relevant to the investigation or audit.

9.23 Force Majeure: The SPB may grant relief from performance of the Contract if the vendor is prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the Contractor. The burden of proof for the need for such relief shall rest upon the Contractor. To obtain release based on force majeure, the Contractor shall file a written request with the SPB.

9.24No Waiver: This Contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the SPB as an agency of the State of Texas or otherwise available to the SPB. The failure to enforce or any delay in the enforcement of any privileges, rights, defenses, remedies, or immunities available to the SPB under this Agreement or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. The SPB does not waive any privileges, rights, defenses, remedies, or immunities available to the SPB as an agency of the State of Texas, or otherwise available to the SPB, by entering into this Agreement or by its conduct prior to or subsequent to entering into this Agreement. The modification of any privileges, rights, defenses, remedies, or immunities available to the SPB must be in writing, must reference this Section, and must be signed by the SPB to be effective, and such modification of any privileges, rights, defenses, remedies, or immunities available to the SPB shall not constitute waiver of any subsequent privileges, rights, defenses, or immunities under this Agreement or under applicable law.

9.25 Limitation of Liability: The SPB shall not be liable for any direct or consequential damages to the

Contractor or any third party for any act or omission of the Contractor in the performance of this

Agreement. The SPB shall not indemnify nor guarantee any obligation of the Contractor.

9.26 Federal, State, and Local Requirements: The Contractor shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form W-2's to common law employees. The Contractor is responsible for both Federal and State Unemployment insurance coverage and standard Workers' Compensation

Insurance coverage. The Contractor shall comply with all Federal and State tax laws and withholding requirements. The SPB shall not be liable to the Contractor or its employees for any Unemployment or Workers' Compensation coverage, or Federal or State withholding requirements. The Contractor shall indemnify the SPB and pay to the SPB all costs, penalties, or losses resulting from the Contractor's omission or breach of this Section.

9.27 Assignment: The Contractor may not assign or subcontract this Agreement, in whole or in part, without the SPB's prior written consent. The Agreement is void if sold or assigned to another company without the written approval of the SPB.

9.28 DTPA: The Contractor represents and warrants that it has not been the subject of a Deceptive Trade

Practices Act or any unfair business practice administrative hearing or court suit and that the

Contractor has not been found to be liable for such practices in such proceedings. The Contractor certifies that it has no officers who have served as officers of other entities who have been the subject of a Deceptive Trade Practices Act or any unfair business administrative hearing or court suit and that such officers have not been found to be liable for such practices in such proceedings.

9.29 False Statements: By signature to this Contract, the Contractor makes all the representations, warranties, guarantees, certifications, and affirmations included in this Agreement. If the Contractor signed its proposal with a false statement or signs this Agreement with a false statement or it is subsequently determined that the Contractor has violated any of the representations, warranties, guarantees, certifications or affirmations included in this Contract, the Contractor shall be in default under this Agreement and the SPB may terminate or void this Agreement for cause and pursue other remedies available to the SPB under this Agreement and applicable law.

9.30 Limitation on Authority: The Contractor will have no authority to act for or on behalf of the SPB or the State of Texas except as expressly provided for in the Contract; no other authority, power or use is granted or implied. The Contractor may not incur any debts, obligations, expenses, or liabilities or any kind on behalf of the SPB or the State of Texas.

9.31 Equal Opportunity: The Contractor represents and warrants that it shall comply with the Civil Rights

Act in giving equal opportunity without regard to race, color, creed, sex or national origin.

9.32 Immigration Laws: The Contractor certifies that all Contractor employees are and will be in compliance with all requirements of the Federal Immigration Reform and Control Act of 1986 (Public

Law 99-603).

9.33 Direct Deposit: The electronic funds transfer (EFT) provisions of Texas law were revised by H.B. 2429, which is now in effect. Depending on eligibility under the law, certain payments from the State may be directly deposited into the Contractor's bank account or may be made by warrant. Vendors who may be eligible for direct deposit and who wish to be paid by direct deposit, must complete the form titled "Vendor Direct Deposit Authorization" and return it as soon as possible to: State Preservation

Board, Accounting, P.O. Box 132876, Austin, TX 78711. Comptroller of Public Accounts' Claims

Divisions oversees the distribution of the state payments, both warrants (paper checks) and direct deposit. For questions regarding the statewide process, contact the Claims Payment Processing

Section, at 1-800-531-5441, ext. 6-2499 or (512) 936-2499, or send an email message to claims.division@cpa.state.tx.us.

9.34 Partially Completed Work: No later than the seventh calendar day after the termination of this

Contract or at SPB request, the Contractor shall deliver to the SPB all completed, or partially completed, work and any and all documentation or other products and results of these services.

Failure to timely deliver such work or any and all documentation or other products and results of the services shall be considered a material breach of this Contract Agreement. The Contractor shall not make or retain any copies of the work or any and all documentation or other products and results of the services without the prior written consent of the SPB.

9.35 Severability: In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

9.36 Prior Agreements Superseded: This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting its subject matter.

9.37 Felony Criminal Convictions: Contractor represents and warrants that Contractor has not and

Contractor’s employees have not been convicted of a felony criminal offense, or that, if such a conviction has occurred, Contractor has fully advised the SPB as to the facts and circumstances surrounding the conviction.

9.38 COVID-19 Vaccine Passport Prohibition: Respondent certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Respondent’s business.

Respondent acknowledges that such a vaccine or recovery requirement would make Respondent ineligible for a state-funded contract.

mailto:claims.division@cpa.state.tx.us

9.39 Energy Company Boycotts: Respondent represents and warrants that: (1) it does not, and will not for the duration of the contract, boycott energy companies or (2) the verification required by

Section 2274.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, Respondent shall promptly notify Agency.

9.40 Firearm Entities and Trade Associations Discrimination: Respondent verifies that: (1) it does not, and will not for the duration of the contract, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by

Section 2274.002 of the Texas Government Code does not apply to the contract. If circumstances relevant to this provision change during the course of the contract, Respondent shall promptly notify Agency.

9.41 Human Trafficking Prohibition: Under Section 2155.0061 of the Texas Government Code, the

Respondent certifies that the individual or business entity named in this Response or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

9.42 Survival of Terms: Termination of the Contract for any reason shall not release the Contractor from any liability or obligation set forth in the Contract that is expressly stated to survive any such termination or by its nature would be intended to be applicable following any such termination, including the provisions regarding confidentiality, indemnification, transition, records, audit, property rights, dispute resolution, and invoice and fees verification.

9.43 Certification Concerning Hurricane Relief: Government Code §2155.006 and §2261.053 prohibit the

SPB from awarding a contract to any person who, in the past five years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for

Hurricane Rita, Hurricane Katrina, or any other disaster, as defined by Government Code §418.004, occurring after September 24, 2005. Under Government Code §2155.006 the Contractor certifies that the individual or business entity named in its proposal is not ineligible to receive the Contract and acknowledges that the Contract may be terminated and payment withheld if this certification is inaccurate.

9.44 Historically Underutilized Businesses (HUBs): In accordance with State law, it is SPB’s policy to assist

HUBs, whether minority or women-owned, whenever possible, to participate in providing goods and services to the agency. SPB encourages those parties with whom it contracts for the provision of goods and services to adhere to this same philosophy in selecting subcontractors to assist in fulfilling

Contractor’s obligations with SPB. If Contractor r subcontracts with others for some or all of the services to be performed under this Contract, Contractor shall comply with all HUB requirements pursuant to Texas Government Code, Chapter 2161 and file with SPB a HUB Subcontracting Plan.

9.45 Misclassification of Workers: Effective January 1, 2014, Texas Labor Code sec. 214.008 authorizes a penalty to be imposed on a person who contracts for certain services with a governmental entity and fails to properly classify their workers. This section applies to subcontractors directly retained and compensated by a person who contracts with a governmental entity.

9.46 Executive Order RP-80: U.S. Department of Homeland Security’s E-Verify System: By entering into this Contract, the Contractor certifies and ensures that it utilizes and will continue to utilize, for the term of this Contract, the U.S. Department of Homeland Security’s E-Verify system to determine the eligibility of:

1. All persons employed to perform duties within Texas, during the term of the Contract; and

2. All persons (including subcontractors) assigned by the Respondent to perform work pursuant to the Contract, within the United States of America.

The Contractor shall provide, upon request of the SPB, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the Form I-9 for the three most recent hires that match the criteria above, by the Contractor, and Contractor’s subcontractors, as proof that this provision is being followed.

If this certification is falsely made, the Contract may be immediately terminated, at the discretion of the state and at no fault to the state, with no prior notification. The Contractor shall also be responsible for the costs of any re-solicitation that the state must undertake to replace the terminated Contract.

ARTICLE 10

INSURANCE( if applicable)

10.1 Contractor shall purchase and maintain insurance, in full force at all times and at its expense, as shall protect the Contractor from claims that may arise out of or result from the Contractor's performance of service pursuant to this Agreement, in the following types and amounts for the duration of this Agreement, and any extensions thereof, and furnish original Certificates of

Insurance, including policy declaration and policy endorsements before work commences as evidence thereof:

10.1.1. Minimum Insurance Coverage:

10.1.1.1Workers Compensation: Minimum coverage for employer liability as determined by the Texas Department of Insurance.

10.1.1.2 Commercial General Liability Insurance: $1,000,000 minimum each occurrence limit; $2,000,000 minimum general aggregate limit.

10.1.1.3 Automobile Liability Insurance for all owned, non-owned, and hired vehicles:

Minimum combined single limit for bodily injury and property damage of

$1,000,000 per occurrence.

10.1.1.4 Umbrella Liability Insurance for an amount of not less than $2,000,000.00 that provides coverage at least as broad as and applies in excess and follows the form of the primary liability coverage required hereinabove. The policy shall provide “drop down” coverage where underlying primary insurance coverage limits are insufficient or exhausted.

10.1.2 General Requirements for Insurance:

Contractor agrees that each of the insurance policies obtained shall meet the requirements of this Agreement and contain the following:

10.1.2.1 The Contractor shall be responsible for deductibles and self-insured retention, if any, stated in policies. All deductibles or self-insured retention shall be disclosed on the certificate of insurance required above and must be approved by the Owner. Actual losses not covered by insurance as required by this

Agreement shall be paid by the Contractor.

10.1.2.2 All insurance coverage obtained by Contractor to fulfill the requirements hereunder shall be on an occurrence basis.

10.1.2.3 Contractor shall maintain coverage for the duration of the Agreement and for two years following the completion of the work under the Agreement. The

Contractor shall, on at least an annual basis, provide the SPB with an insurance certificate as evidence of insurance. The premium for the reporting period shall be paid by the Contractor.

10.1.2.4 The Parties agree that the policies required in this Agreement, shall be considered primary coverage, as applicable.

10.1.2.5 Insurance shall be written by a company licensed to do business in the State of

Texas at the time the policy is issued and shall be written by a company with an

A.M. Best rating of A or better.

10.1.2.6 All certificates shall include a clause to the effect that the policy shall not be canceled, reduced, restricted or limited until thirty (30) days after the SPB has received written notice.

10.1.2.7 Unless the requisite prior notification has been provided to the SPB and replacement insurance meeting all of the requirements of this Agreement has been obtained, Contractor shall not cause or allow any of its insurance coverage to be canceled nor permit any insurance coverage to lapse during the term of the Agreement or as required in the Agreement.

10.1.2.8The SPB reserves the right to review the insurance requirements of this section during the effective period of the Agreement and to make reasonable adjustments to insurance coverage and their limits when deemed necessary and prudent by the SPB based upon changes in statutory law, court decisions or the claims history of the industry as well as the Contractor (such adjustments shall be commercially available to the Contractor).

10.1.2.9 Without limiting any of the other obligations or liabilities of the Contractor, the

Contractor shall require each Subcontractor performing work under the

Contract, at the Subcontractor’s own expense, to maintain during the term of the Contract, the same stipulated minimum insurance including the required provisions and additional policy conditions shown above. As an alternative, the

Contractor may include its Subcontractors as additional insureds on its own coverage as prescribed under these requirements. The Contractor’s certificates of insurance shall note in such event that the Subcontractors are included as additional insureds and that Contractor agrees to provide Workers’

Compensation for the Subcontractors and their employees. The Contractor shall obtain and monitor the certificates of insurance from each Subcontractor in order to assure compliance with the insurance requirements. The

Contractor must retain the certificates of insurance for the duration of the

Contract and shall have the responsibility of enforcing these insurance requirements among its subcontractors. The SPB shall be entitled, upon request and without expense, to receive copies of these certificates.

ARTICLE 12

NOTICE

Any notice required or permitted to be given pursuant to the Agreement shall be in writing and sent to the address set forth below. Notice shall be deemed delivered on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by registered or certified mail, or hand delivered, or (ii) three business days after being mailed via United States Postal Service.

Notice given in any other manner shall be deemed effective only if and when received by the party to be notified. Either party may change its address for notice by written notice to the other party as herein provided.

SPB: _____________________ Contractor: _________________________

Persons signing are expressly authorized to obligate the parties to the terms of this contract.

The undersigned hereby agree to the terms and conditions of this Agreement:

OWNER CONTRACTOR

State Preservation Board __________________________

By: ___________________________ By:________________________

Rod Welsh ___________________

Executive Director ___________________

Date Date

Approved as to Form:

Leslie Pawelka, SPB Attorney Date